Scott-Polson v. Henley

In British Columbia, the Wills Variation Act provides that the Supreme Court of British Columbia may vary a will on application by a child if the will does not make adequate provision for that child. The court may then make such provision as it considers adequate, just and equitable in the circumstances.

Although there is no rule that a parent must treat all of his or her children the same, where there is a significant disparity in the amounts left to children, the courts consider whether the parent had rational and valid reasons for the disparate provisions. If so, the court may uphold the will, or the variation may be small. Where the court does not find rational and valid reasons, in most of the cases in which there is a significant disparity, the courts have varied the will in favour of the child who was disfavoured in the will.

The focus of the inquiry is often on the relationships between children and their parents, or on the circumstances of the children. For example, a parent might favour a child with whom the parent has a good relationship over one who has treated the parent poorly, or one child may have greater financial needs than another.

But what if the parent has children from two marriages, and most of the parent’s wealth was accumulated during the second marriage. Is it rational and valid to favour the children from the second marriage over those of the first?

This was considered in a recent decision, Scott-Polson v. Henley, 2013 BCSC 247.

Rosemary Joy Lupkoski died on May 8, 2010, leaving a net estate worth approximately $775,000 as at the date of trial. She had nine children, six of them from her first marriage, and three from her second. She was divorced from her first husband.  She and her second husband, Nicholas, accumulated their wealth during their marriage, and when he died, she received all of their combined wealth.

In her will, she left a quarter of her estate to each of her three children from her second marriage, and the other quarter to be divided equally among the six from her first marriage.

The six children from the first marriage brought a claim under the Wills Variation Act. They gave evidence, which the court accepted of difficult childhoods, and of a physically and emotionally abusive mother. With the exception of one, Wendy Scott-Polson, who was living on a disability pension, the children from the first marriage were financially successful. The children from the second marriage, who also had difficult childhoods, had greater financial needs.

Mr. Justice Sewell varied the will to provide Wendy Scott-Polson with a $100,000 cash bequest because of her greater financial needs.

But Mr. Justice Sewell rejected the plaintiffs’ contention that Rosemary Lupkoski was motivated by her hatred for their father, Ronald, in leaving less for them than for her other three children. He found that she had rational and valid reasons for favouring the children from her second marriage in that she acquired her wealth during the second marriage. Mr. Justice Sewell wrote at paragraphs 83 and 84:

[83]         I have concluded that the estate distribution set out in the Will was not motivated by spite or hatred of Ronald and his children. I conclude that the reason Rosemary gave for the distribution scheme was genuine and valid. That is, it was in fact based on distinguishing between Ronald’s and Nicholas’ children. I also accept that it was the joint efforts of Nicholas and Rosemary that was the foundation of the estate that Rosemary possessed on her death. Towner Park was purchased from funds generated from the sale of properties owned by Nicholas. Nicholas and Rosemary built the home on Towner Park using the same funds as well as Nicholas’ labour. On his death, all of Nicholas’ estate passed to Rosemary by right of survivorship. 

 [84]         I consider that the fact that the estate was largely created by Nicholas and was in no way attributable to Ronald’s efforts is a relevant circumstance that Rosemary was entitled to take into account in making the Will and that her decision to do so was therefore natural. Recognizing the greater contribution of the parent of one group of children over the parent of another was accepted as a relevant circumstance in Saugestad v. Saugestad, 2008 BCCA 38, 77 B.C.L.R. (4th) 170 at para. 38. Like the predeceased mother in Saugestad, Nicholas could reasonably have expected that his efforts would benefit his children.

In the result, the Court varied the will to provide Wendy Scott-Polson $100,000, with the residue of the estate to be distributed with 22.5% to the other five children of the first marriage, and 77.5% to the children from the second marriage.